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The victims of the crime are often the forgotten people in the system. The
entire focus of criminal justice system is on the criminal, either to punish
him or to reform him. Efforts are made to understand his personality and
the individual and social factors which might have contributed to his
criminal behavior. President Gerald R. Ford sent the following message to
the American congress in 1975:
“For too long, the law has centred its attention more on the rights of
criminal than on the victims of crime. It is high time we reversed this trend
and put the highest priority on the victims and potential victims.”
However, the sympathy for the victims, in the recent times, has
added new dimension to the concept of criminology. In fact, a separate
discipline ‘victimology’ has emerged.
The penal codes of the erstwhile USSR describe the victim as follows:
1. Those who have as a direct result of a crime suffered moral physical
or material damage;
3. Those whose material damage caused by the crime was made good
after the crime, either by the criminal himself or with the help of
Militia or of an individual action;
“a person who has suffered physical or mental injury or harm, mental loss
or damage or other social disadvantage as result of conduct.”
Von Hentig made the first ever study of the role of victim in crime
and found some general characteristics among them which may be
summarized as follows:
1. The poor and ignorant immigrants and those who are requisitive or
greedy are the victims of offences involving frauds.
3. Voluntary victims, such as the ones who commit suicide or are killed
by euthanasia.
4. victims who are more guilty then offenders such as persons who
provoke others to commit crimes.
Elderly Victims: Old persons who live alone often become the victims of
crime. Since they are weak and incapable of protecting themselves, they
are more prone to victimization. Recently, in Delhi many such persons
were killed by the thieves and robbers.
IV Social stigma.
Indian position
(i)Legislative framework:
Sub section (3) empowers the court, in its discretion, to order the accused
to pay compensation even though fine does not form part of
compensation and hence although inserted in 1973 added new positive
dimension to Indian philosophy of compensation.
Probation of Offenders Act vide its section 5 empowers the trail court to
order for compensation. The plain reading of this section clearly shows
that the power in case of this Act vests only with the trial court and
nothing else. The whole discussion about legislative framework is
incomplete until Section 431 and 421 of Cr.P.C. is read with above two
substantive sections. Section 421 provides for means to recover the fine
by attachment and sale of movable property of the offender and also from
both movable and immovable as arrears of land revenue . Section 431
empowers the courts to recover any money (other than fine) payable by
virtue of any order made under as if it were fine if method for its recovery
is not expressly provided . As far as the Constitutional scheme is concern
it is to be noted that it is out come of various decision of Supreme Court of
India either by reading Part third rights (in some cases part four as well)
with Art. 32, 136 and 142 of Constitution of India , which is to be given
either by the state or accuse.
Their exist plethora of cases where the compensation has been awarded
by the Supreme Court to the victims of the crime which not only present
the heart full moments but also exposed the sorry state of affairs that has
been prevalent in the lower courts even some times High Courts.
It is better to examine cases under two heads i.e. (i) under Cr.P.C. and
P.O.A. and (ii) under Indian Constitution in order to appreciate the judicial
standpoint on this issue.
The first case in the line, which attracted the mind of the court came way
back in 1952 where the Hon'ble connected general principle of sentencing
i.e. while passing a sentence the court must bear in mind the proposnality
between offence and penalty with granting of compensation and observed
that while imposing the fine court must consider gravity of offence and the
pecuniary condition of the offender. Then came the case of Prabhu Prasad
Sha v State of Bihar where the Hon'ble not only uphold the conviction of 15
years old boy (actually at the time of commission of crime the accuse was
of 15 Yrs) but also observed that although requirements of social justice
demands the imposition of heavy fine but taking in to consideration the
condition of the accuse awarded fine of Rs 3000 to be paid by him to the
children of the deceased. In another case of Palaniappa Gounder v Sate of
Tamil Nadu Supreme Court following the same view as of earlier not only
reduced the amount of fine imposed by the High Court from Rs 20,000 to
Rs 3,000 but also observed that :
The next important case is of Bhupendar Singh v State of M.P. which was
out come of quarrel between college students where the Hon'ble Court
although allowed the compounding of offence but did not forget the cause
of victim and granted the compensation of Rs 3000.
The Case of Harikishan and State of Haryana v Sukhbir Singh and others
is the second most important case after Sarwan Singh where court
repeated its firm understanding once again in following words :
Rudal Sah v State of Bihar is the most celebrated case where the Hon'ble
S.C. directed the state to pay compensation of Rs 35,000 to Rudal Sah
who was kept in jail for 14 years even after his acquittal on the ground of
insanity and held that it is violation of Article 21 done by the State of Bihar.
The case of Bhim Singh v State of J&K is another important case where
Bhim Singh an MLA was arrested by the police only to prevent him to
attended the Legislative Assembly, the Hon'ble Court not only entertained
the writ petition of his wife but also awarded the compensation of Rs
50,000 to be paid by the state. The case of Meja Singh v SHO Police
Station Zira is another unfortunate case where this time High Court of P&H
took the cause of victim and awarded the compensation of Rs 25,000 for
illegal detention of son of the petitioner. This time it was High Court
Bombay, which took the cause of the victim in the case of Ravikant Patil v
DG Police, State of Maharastra where the petitioner was taken handcuffed
to court in clear violation of Judgment of Hon'ble S.C., that is law, as
decided in the case of Prem Shanker Shukla v Delhi Administration .
Custodial Death is another burning issue where the courts have awarded
compensation to the victims of crime and the most important case under
this heading is of Mrs. Cardino v UOI where although the accuse was
arrested on the charge of misappropriation of some plastic ware and
hospital; utensils worth Rs1500 but tortured like hard core criminal and
hence he succumbed to the torture. Here when the matter was brought
before the Hon'ble High Court of Bombay which gave the compensation of
Rs 2,00,000 to be paid by the state. In the case of Nilabati Behra v State of
Orissa where the son of petitioner was arrested by the police and next
morning his body was found laying down with several injuries on the
railway track, the Hon'ble S.C. awarded the compensation of Rs 1,50,000
that is to be paid by the State. On the issue of brutal use of force and
misuse of authority by the police out side the police station case ofSAHELI
v Commissioner of Police is land mark where the son of Kamlesh Kumari
died due to ill treatment by a S.I. of Delhi Police, the Hon'ble S.C. directed
the Delhi Adm. to pay the compensation of Rs 75,000. The next important
case is of Gudalure Cherian v UOI where Hon'ble S.C. following an
innovative approach first directed the whole matter to be investigated by
the CBI afresh and completion of investigation directed the Govt. of U.P. to
first suspend the police officials and medical officers who tried to save the
accuse but also directed the state to pay compensation of Rs 2,50,000 to
the victim of rape and Rs 1,00,000 to victim of other crime. The next in the
line is the case of Bodhi Satta Gautam v Subhra Chakraborty where the
Hon'ble S.C. invented the concept of interim compensation and enforced
the part third right against an individual by saying that:
Having regard to the facts and circumstances of the present case in which
there is a serious allegation that Bodhisattwa Gautam had married Subhra
Chakraborty before the God he worshipped by putting Vermilion on her
forehead and accepting her as his wife and also having impregnated her
twice resulting in abortion on both the occasions, we, on being prima facie
satisfied, dispose of this matter by providing that Bodhisattwa Gautam
shall pay in Subhra Chakraborty a sum of Rs. 1,000/-every month as
interim compensation during the pendency of Criminal Case……… in the
Court of Judicial Magistrate, Ist Class, Kohima, Nagaland. He shall also be
liable to pay arrears of compensation at the same rate from the date on
which the complaint was filed, till this date.
Therefore it can be observed that the Hon'ble Courts have taken little
softer view ( with regard to monetary aspect) when question of the award
of compensation come under Cr.P.C. as compare to when it come under
Constitution.
VII. Assessment of the Role of Legislative Frame work and Indian Courts:
The exit no doubt that Code of Criminal Procedure provided for the
compensation to victim in the year 1898, when even the concept has not
developed properly but now it submitted that the whole scheme under
Cr.P.C. or P.O.A. needs renovation. The most important attack on the
present legislative frame work lies on the desertion given to the courts i.e.
it depends upon them to grant compensation and absence of recording
any reason when they abstain them self from grating compensation.
Another criticism of the present legislative framework lies in the absence
of right of victim to claim compensation. Critics also argue for the
absence of any institutional scheme under the present legislative
framework that has now become the important part of victim- Crime
relationalship in countries of southern hemisphere such as USA, UK, New
Zealand, France etc . The laxity on the part of Indian legislature is so much
so that India has not made any legislation to give compensation to victim
of crime when accused is acquitted despite of its obligation under various
International Covenants . In this regard even Hon'ble S.C. in the case
of Delhi Domestic Working Forum v UOI has shown its concern in flowing
words:
So this in brief set out the major defaults in the present legislative
framework due to which the whole concept of compensation has become
akin to flop show in India. However it is to be noted that part of
responsibility of being the concept flop show lies on Indian judiciary as
well, especial the lower courts. In this regard the observation of Hon'ble
S.C. in the case of State of Gujarat v Hon'ble High Court of Gujarat is
relevant where following was stated:
Section 357 of the Criminal Procedure Code, 1973 provides some reliefs to
the victims as the court is empowered to direct payment of compensation
to any person for any loss or injury caused by the offence. But in practice
the said provision has not proved to be of much effectiveness. Many
persons who are sentenced to long term imprisonment do not pay the
compensation and instead they choose to continue in jail in default
thereof. It is only when fine alone is the sentence that the convicts
invariably choose to remit the fine. But those are cases in which the harm
inflicted on the victims would have been far less serious. Thus the
restorative and reparative theories are not translated into real benefits to
the victims.
However in this regard it is to be noted that the attempt of Hon'ble S.C. and
some of the High Courts as discussed above clearly shows that they are
championing the cause of victim even in the given set up but still looking
to the problem as a whole, inherent weakness on the legislative framework
as well as laxity on the part of court has made the proper functioning of
whole concept a distant dream in strict sense.
Conclusion
It is, therefore, the Indian Higher Courts have started to award the
compensation through their writ jurisdiction in appropriate cases.
An Assignment of
Criminology
On the topic
Victimology
Submitted by
Ayush Jha
B.A.LL.B.(H.)
5th Semester
Roll No. 10
THANKING YOU.
References:
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